SECTIONAL TITLES – RIGHT TO EXTEND
At the opening of a sectional title register, a developer can reserve the right to attend to a vertical and/or horizontal extension of the scheme within a prescribed period of time. With the reservation of such a Real Right to Extend, the developer must submit a plan-to-scale indicating the ‘possible’ building/s to be erected in future.
The developer’s architect must assist with the preparation of a plan-to-scale to be lodged together with the Amended Sectional Plan.
The architect’s plan must indicate the following:
- 1. The part of the common property affected by the reservation of the Real Right;
- 2. The siting, height and coverage of all buildings;
- 3. The entrances and exits to the land;
- 4. The building restrictions areas, if any;
- 5. The parking areas; and
- 6. The typical elevation treatment of all buildings.
Further requirements to be followed by the architect are as follows:
a) The plan must show the manner in which the building/s to be erected are to be divided into a section/s and any exclusive use areas;
b) The plan must indicate the estimated participation quotas of all the sections in the Scheme after the addition of the proposed section/s;
c) The architect must also confirm, to the satisfaction of the Registrar of Deeds, the particulars of any substantial difference between the materials to be used in the construction of the building/s to be erected and those used in the construction of the existing building/s.
d) The architect’s proposal must be in line with the existing buildings. Any changes to the existing building must be indicated at this stage. If there is a deviation afterwards, it can only be amended by a Court Order, which will incur unnecessary costs.
e) Please note that the architect’s plan is only a proposal whereby the developer reserves a right for future extensions, and does not need to be approved by the Council for this purpose.
In the event of a developer exercising his/her right to extend, they need to adhere to the guidelines above. Section 25(13) of the Sectional Titles Act 95 of 1986 provide relief to the owners of the Body Corporate where the developer deviates from the envisaged plans. The existing owners / members of the Body Corporate may bring an action to prohibit building works to proceed. Such an application will only succeed in obliging a developer to stick to the initial plans, where it can be shown the deviation negatively affects the rights of the Body Corporate and its members.
A practical example can be taken from the recent judgment in the case of Skilfull 54 (EDMS) Beperk v Human N.O. (5107/2013) [2014] ZAFSHC 14 (20 February 2014):
At the opening of the Bloemvallei Sectional Scheme, Human reserved the right to extend for a period of 20 years, with expiry due on the 18th of March 2014. In terms of the plans submitted together with the reservation of the right, Human anticipated to erect a further three blocks of flats in the scheme; these buildings would be very similar to the existing buildings in the scheme.
Human erected two of the three buildings in 1997, which was substantially in accordance with the plans registered in respect of the right to extend. The third building however, differed substantially from the other five buildings in that it was only two storeys and not three, and the units were larger with more amenities, in order to accommodate families.
The Body Corporate was of the opinion that its rights were negatively affected hereby and approached the Court for a final interdict prohibiting the trust from erecting buildings that were not aligned with the initial plans when the right to extend was registered.
Human defended action and argued that due to changed circumstances in the market, strict compliance with the initial plans would be impractical. The initial plans targeted student accommodation, while there was now more a demand for family accommodation in the area.
The Body Corporate alleged that the new block of flats comprised of a larger floor area, which will cause density and diminished communal areas. By housing more people than initially anticipated there would be a further burden on the water, electrical and sanitation supply to the scheme, and increase traffic, which will negatively impact on the value of existing units.
Human defended that although a larger block was being erected, it only comprised two storeys. Furthermore, the building was erected on a large tract of undeveloped and unused land, and would therefore hardly impact on the density or availability of common areas. The new block was 670m², instead of the anticipated 400m², however it was erected on 2500m² of unused land. Under the circumstances, the prejudice that the Body Corporate alluded to, did not materialise.
The Court agreed with Human and the application was dismissed with costs.
Wietz Viljoen, WVA INC.
This article is for general information purposes and is aimed at advising the public. It should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.
